Here’s another common scenario we see with clients: An employer has an especially difficult employee who has made multiple complaints about their treatment while at the same time performing terribly and missing significant amounts of work. The employer desperately wants to terminate the employee but remains concerned over a retaliation claim. We then get a call that the employer has found a “smoking gun,” proving that the worker has clearly violated company policy. The company wants to fire the employee immediately and asks whether the evidence of a serious disciplinary violation will shield them from the inevitable retaliation claim. The employer is sometimes surprised when the lawyer gives the classic “it depends” reply.

This principle was illustrated in a new Third Circuit Court of Appeals decision. In Canada v. Samuel Grossi & Sons, Inc., the plaintiff was an employee who had filed suit alleging discrimination and Family and Medical Leave Act (FMLA) violations by the company. About one month after the lawsuit was filed, the employer said that in the course of relocating employee storage lockers, it cut the lock off of the employee’s locker and found a cellphone inside. Thinking it might be a company phone (it turned out not to be), the HR director guessed the password and reviewed a year’s worth of the employee’s text messages. Among those messages, the company found communications soliciting prostitutes during working hours. The company fired the employee for violating its policies, and he amended his lawsuit to add a retaliation claim.

The plaintiff appealed the dismissal of his retaliation claim, alleging that the employer claimed a pretextual reason to justify the action. The court agreed, remanding the claims for trial. The Third Circuit concluded that the motive behind the cellphone search raised factual questions as to whether the employer retaliated against the plaintiff. The evidence here indicated that the employer went to extraordinary lengths to find a reason to fire him. In other words, the search itself was retaliatory regardless of the evidence it produced.

In this case, the employer had no basis to believe that the employee had engaged in misconduct until it hacked his personal phone and reviewed a year’s worth of messages. No other employees were subjected to this type of inquiry. This case demonstrates that employers cannot go fishing for reasons to get rid of a problem employee. In order to avoid a serious retaliation claim, the company will need to document and explain the reasons why it began its investigation instead of simply relying on the results of its inquiry.